State v. Nacey

2013 UT App 125
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
PATRICK ROBERT NACEY,
Defendant and Appellant.

Per Curiam Decision
No. 20110622‐CA
Filed May 16, 2013

Third District, Salt Lake Department
The Honorable Robert P. Faust
No. 091909703

Peter A. Daines and Scott A. Wilson, Attorneys for
Appellant
John E. Swallow and Brett J. DelPorto, Attorneys
for Appellee

Before JUDGES ORME, MCHUGH, and ROTH.

PER CURIAM:

¶1 Patrick Robert Nacey appeals his conviction of attempted
rape. He argues that there was insufficient evidence to support the
conviction. We affirm.

¶2 “[A]s a general rule, a defendant must raise the sufficiency
of the evidence by proper motion or objection to preserve the issue
for appeal.” State v. Holgate, 2000 UT 74, ¶ 16, 10 P.3d 346. Nacey
argues that he preserved his sufficiency of the evidence claim
through motions for a directed verdict, which he made both at the
close of the State’s case‐in‐chief and before the case was submitted
to the jury. However, the record demonstrates that Nacey’s
motions for a directed verdict only raised the issue concerning
State v. Nacey

whether there was sufficient evidence to support the rape charge,
i.e., whether there was evidence of penetration. Nacey’s argument
on appeal is that there was insufficient evidence to support the
conviction of attempted rape because the victim’s testimony was
too unreliable to establish attempted rape beyond a reasonable
doubt. Nacey’s motions to the district court were insufficient to
preserve the issue he now raises on appeal. See State v. Maese, 2010
UT App 106, ¶ 13, 236 P.3d 155 (“[I]n order to preserve an issue for
appeal the issue must be presented to the trial court in such a way
that the trial court has an opportunity to rule on that issue.”
(citation and internal quotation marks omitted)). Accordingly, in
order to prevail, Nacey must show that the district court committed
plain error.1 See Holgate, 2000 UT 74, ¶ 11.

¶3 A “trial court plainly errs if it submits the case to the jury
and thus fails to discharge a defendant when the insufficiency of
the evidence is apparent to the court.” Id. ¶ 17. “[T]o establish plain
error, a defendant must demonstrate first that the evidence was
insufficient to support a conviction of the crime charged and
second that the insufficiency was so obvious and fundamental that
the trial court erred in submitting the case to the jury.” Id. When
the sufficiency of the evidence is challenged, an appellate court
reviews “the evidence and all inferences drawn therefrom in a light
most favorable to the verdict.” Id. ¶ 18.

¶4 Nacey maintains that the victim’s testimony was so
unreliable that the district court plainly erred in submitting the case
to the jury. When reviewing the sufficiency of the evidence,
appellate courts “may not reassess credibility or reweigh the
evidence, but must resolve conflicts in the evidence in favor of the
jury verdict.” State v. Workman, 852 P.2d 981, 984 (Utah 1993).
However, we may reverse a jury’s decision when the evidence “is
sufficiently inconclusive or inherently improbable that reasonable

1. Nacey does not argue that “exceptional circumstances” justify
this court’s review of the unpreserved issue.

20110622‐CA 2 2013 UT App 125
State v. Nacey

minds must have entertained a reasonable doubt.” State v. Mead,
2001 UT 58, ¶ 65, 27 P.3d 1115. That said, inherent improbability
does “not allow defendants to challenge witness testimony for
generalized concerns about a witness’s credibility.” State v. Robbins,
2009 UT 23, ¶ 19, 210 P.3d 288. Rather, a witness’s testimony is
inherently improbable if “its falsity is apparent, without any resort
to inferences or deductions.” Id. ¶ 17 (citation and internal
quotation marks omitted).

¶5 Nacey fails to demonstrate that the district court committed
plain error in submitting the case to the jury. Nacey’s challenge to
the victim’s testimony is based on generalized concerns about her
credibility. Specifically, he characterizes her as a “schizophrenic
liar” and cites the testimony of several witnesses who called into
question the victim’s reputation for truthfulness. However, the
victim’s testimony was corroborated by both her husband and
circumstantial physical evidence. Accordingly, because additional
evidence supported the victim’s testimony, we cannot say that the
falsity of the victim’s testimony was inherent without resort to
inferences or deductions. See id. Therefore, the determination of
credibility was properly left to the jury for its consideration.

¶6 Affirmed.

20110622‐CA 3 2013 UT App 125